Evidence law under Victoria’s Charter: Responsibilities and remedies – Part II jeremy Gans

determination of what is left of the common law will be akin to legislating.37 While there is arguably a difference in degree between a comprehensive human rights statute and other legislation that occupies subject matter dealt with by the common law (eg acts interpretation statutes, anti- discrimination statutes, Torrens title statutes, evidence law statutes or sexual privacy statutes),38 it is not at all apparent that there is a qualitative difference that merits constitutional intervention.
Moreover, the committee’s recommended solution to these possible constitutional problems –

exempting all exercises of judicial and quasi-judicial39 power from the Charter’s obligations regime – goes far beyond what is necessary. Developing and applying the common law is only one of many judicial functions that courts and tribunals exercise. Putting aside the function of applying the s 32(1)’s rule on the interpretation of legislation,40 courts and tribunals must apply other rules of interpretation41 and make collateral legal and factual findings relevant to determining whether a statute is in force and applicable. More importantly, courts routinely exercise discretions and powers granted by statutes and the common law, many of which, on any view, are extremely broad. Moreover, much judicial work is expended in interlocutory or procedural matters, where courts are simply exercising their inherent power to manage their own business. Why should not a Victorian court doing these things – none of which impinge on Australia’s unified common law – be obliged to act compatibly with and take account of human rights?

34 Compare Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 at [18], noting that the argument about the development of the common law “was not at the forefront of the appellant’s oral submissions in this Court and reliance is placed upon the written submissions. The interrelation and interaction between common law and statute may trigger varied and complex questions requiring full arguments in cases where they arise” (emphasis added).

35 Compare Perry, n 30, p 17.

36 Compare Australian Human Rights Centre, Submission to the Victorian Human Rights Consultation Committee (August 2005) p 29 stating that: “[T]he current position in Australia is that there is one unified common law of Australia, which is not susceptible to direct influence by legislation in any one state” (emphasis added). One explanation for the presence of the word “direct” in this passage is that it is a typo and that the reference should have been to “indirect influence”, which is what was at issue in Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49. Unfortunately, if this is a typo, then it is a highly consequential one, as the passage was quoted (apparently with approval) by the Human Rights Consultation Committee, n 28, p 59.

37 This argument was mooted by Therese Henning in an unpublished paper she presented at the Evidence, Criminal Justice and Adjudication Colloquium, Faculty of Law, University of New South Wales (21 April 2007).

38 For example, the Human Rights (Sexual Conduct) Act 1994 (Cth).

39 See Charter of Human Rights and Responsibilities Bill 2006 (Vic), Explanatory Memorandum on cl 4(1)(j).

40 Applicable to the courts via the Charter, s 6(2)(b), regardless of the definition of public authority.

41 See, eg R v YL (2004) 187 FLR 84 at [24]-[28], applying the Acts Interpretation Act 1901 (Cth), s 10A (on references to repealed legislation) in a case where the judge raised concerns that its application to Evidence Act 1995 (Cth), s 19 (exempting some proceedings from s 18, and providing courts with a discretion to permit a relative of the defendant not to testify), could lead to physical harm to a witness, contrary to Human Rights Act 2004 (ACT), s 11 on the right of children to protection.

Nor is this problem necessarily solved by the Charter’s regime for statutory interpretation. To

return to the example concerning cross-examination of defendants about their character, this happens

to be a topic that, under Victoria’s current evidence law, is contained in a statutory provision.42

However, there are two problems with interpreting this provision, say, as requiring a court to refuse

leave if the attack limited the defendant’s human rights. One is that the High Court has already held

that the discretion to give leave to a cross-examination must not be interpreted as a “general

exclusionary rule”, as to do so would undermine the intended statutory scheme, which balances many

factors, including the capacity for judicial directions to manage any prejudice that might result from

admission.43 This view would appear to preclude a contrary interpretation under s 32(1) “so far as

possible consistently with [the cross-examination statute’s] purpose”. A further problem is that the

High Court has held that this statutory provision – which contains no criteria for the discretion it

creates – in fact “expresses a rule of practice” (applicable whether the statute exists or not) and also

“gives statutory recognition” to a common law discretion to exclude unfairly prejudicial evidence.44

So, arguably, the only aspect of the discretion amenable to statutory interpretation is its existence;

everything else is governed by non-statutory law, which the Charter’s interpretation regime is not

supposed to affect. A similar argument might also apply under the equivalent provision in the new

Evidence Act 2008, which also is subject to a general leave requirement.45 It certainly can be made

about other aspects of the statute that expressly preserve common law rules, notably the obligation to

give judicial directions required to ensure that a trial is fair.46
The exemption of courts from the Charter’s obligations regime seems to be a case of an esoteric

bit of human rights theory gone awry. The committee’s discussion of the common law emerged from

its consideration of a policy debate about whether rights regimes that apply to government action

ought to be permitted to have a “horizontal effect”, via the courts, on how citizens deal with each other

(arguably broadening power imbalances between them).47 Indeed, this rationale for the exemption was

belatedly mooted in Western Australia’s (WA) human rights consultation in the face of criticism of

Victoria’s constitutional argument:48

[T]here appears to us to be other reasons why some caution should be exercised in considering whether

courts and tribunals should be required to make decisions, and act, compatibly with human rights in the

performance of their judicial functions (or at least in the application of the common law). To require

courts and tribunals to comply with human rights in this way would potentially extend the recognition

and protection of human rights far beyond the scope intended by the Parliament.

However, the legal relationship between private citizens (ie private law) is not a topic that is

commensurate with either the common law49 or the non-administrative function of the courts. Rather,

much of the common law, and what the courts do generally, concerns private people’s legal

relationship with the state (ie public law). This is especially true of decisions by courts about how they

will (and will not) resolve the factual disputes that public or private individuals bring before them

(ie evidence law.) There is no political controversy whatsoever about subjecting this aspect of the

courts’ work to an obligation to act compatibly with human rights, especially the civil and political

rights that the Charter promotes. In the context of public law, and notably criminal law, the only

42 Crimes Act 1958 (Vic), s 399(6). See also Evidence Act 2008 (Vic), s 104.

43 Phillips v The Queen (1985) 159 CLR 45 at 57.

44 Phillips v The Queen (1985) 159 CLR 45 at 51; cf Matusevich v The Queen (1977) 136 CLR 633 at 652 discussing the Victorian provision.

45 Evidence Act 2008 (Vic), ss 104, 110, 112.

46 Evidence Act 2008 (Vic), s 165(5).

47 Human Rights Consultation Committee, n 28, p 59, quoting Australian Human Rights Centre, n 36, p 29, citing numerous comparative law articles at fn 90.

48 Consultation Committee for a Proposed WA Human Rights Act, A WA Human Rights Act, Final Report (2007) p 192.

49 See Evans S and Evans C, “Legal Redress Under the Victorian Charter of Human Rights and Responsibilities” (2006) 17 PLR 264 at 269-270, noting that s 32(1) of the Charter will have a horizontal effect, including potentially giving (via statute) human rights to corporations, despite the intentions of “some of the participants in the political debate”.

distinction between courts (acting judicially) and other public authorities is that courts are especially

powerful, a reality attested to by the number of Charter rights that are directed especially at courts. To

oblige other public authorities to conform to these rights50 but to exempt courts in their judicial

function from them is simply perverse.

Again, to return to the example of the rule of evidence concerning a defendant’s character, it

might be argued that, while a court is exempt from acting compatibly with Charter rights when

exercising its discretion to admit such evidence, the prosecutor, almost always a “public authority”,51

is forbidden by the Charter’s obligations regime under s 38(1) from cross-examining the defendant “in

a way that is incompatible with a human right”. However, while this argument does seem to follow

from s 38(1), it seems unsatisfactory as it means that the prosecution and court are effectively subject

to different rules of evidence. Procedurally, whereas disputes about the court’s version of evidence law

are resolved through hearings on admissibility, the prosecutor’s version – based on conduct, rather

than admissibility – would require interlocutory proceedings on the issuing of a declaration or

injunction;52 in practice, a court would first have to decide whether to give a prosecutor leave to

cross-examine under the cross-examinations statute and then decide whether to enjoin the prosecutor

from doing so under the Charter. Moreover, the court would need to rule, not on the evidence itself,

but rather the prosecutor’s decisions about it, a subject traditionally off limits from judicial scrutiny as

it turns on tactical and ethical concerns and may require the divulgence of confidential information. It

may well be that the prosecutor will also be able to argue that it would not be reasonable for it to

refrain from adducing evidence that would be admissible under the applicable law; such a course may,

indeed, fail to give effect to (and even frustrate) that law.53
The problem of applying two different sets of rules of evidence is even more extreme with respect

to the differential application of the obligations regime to different “functions” of Victoria’s courts and

tribunals.54 If the note to s 4(1)(j) is correct in claiming that committals are acts done in an

“administrative capacity” and hence subject to the Charter,55 then it means that Victorian magistrates,

in determining whether there is sufficient evidence for charges to proceed to a trial, will need to

exercise any discretion they have compatibly with Charter rights, including s 24(1)’s right to a fair

50 Compare: “[T]he presumption of innocence implies a right to be treated in accordance with this principle. It is therefore a duty of all public authorities to refrain from prejudging the outcome of a trial” (emphasis added): United Nations Human Rights Committee, General Comment No 13: Equality Before the Courts and the Right to a Fair and Public Hearing by an Independent Court Established by Law (Art 14) (1984) at [7].

51 Charter, s 4(1), including a “public official”, defined by the Public Administration 2004 (Vic), s 4(1), which in turn includes the “holder of a statutory office”, in turn defined as “an office established by or under an Act to which the right to appoint is vested in the Governor in Council or a Minister”; cf Public Prosecution Act 1994 (Vic), s 31; but cf R v YL (2004) 187 FLR 84 at [21] noting the possibility of private prosecutions.

52 Charter, s 39(2)(b); cf R (Pretty) v Director of Public Prosecutions [2002] 1 AC 800 at [121], decrying suggestions that prosecutors themselves should resolve disputes about what the law is, but compare the Charter, s 41(c), giving the Victorian Equal Opportunity and Human Rights Commission a function “when requested by a public authority, to review the authority’s programs and practices to determine their compatibility with human rights”. See also s 33, providing for referral to a higher court if a party requests and “the question is appropriate for determination by the Supreme Court” and barring lower court determinations or inconsistent action while the referred question is pending.

53 Charter, s 38(2); cf Doherty v Birmingham City Council [2008] WLR 636 at [155].

54 Charter, s 4(1)(j).

55 Compare the remarks of the High Court in R v Murphy (1985) 158 CLR 596 at 616 that: “Even though they are properly to be regarded as non-judicial in character, committal proceedings themselves traditionally constitute the first step in the curial process, possibly culminating in the presentation of the indictment and trial by jury. They have the closest, if not an essential, connexion with an actual exercise of judicial power”; cf Fingleton v The Queen (2005) 227 CLR 166 at [44]; cf Charter of Human Rights and Responsibilities Bill 2006 (Vic), Explanatory Memorandum, which states that the exception to s 4(1)(j) covers “courts when acting in a judicial or quasi-judicial capacity” (emphasis added).

hearing. It is possible, therefore, that magistrates presiding over committals will be required to

disregard some evidence, eg of disputed confessions, even though the trial judges in any eventual trial

will be under no similar obligation.56
A possible solution to the problem posed by s 4(1)(j) was proposed by King J in R v Williams:

Section 6(2) of the Charter establishes that the Charter applies to courts and tribunals, to the extent that

they have functions under Pt 2, s 3(2) defines function as including a reference to a power, authority and

duty; and that a reference to the exercise of a function includes, where the function is a duty, a reference

to the performance of the duty …

When a Court is determining what would constitute a fair hearing in respect of a criminal trial it would

be difficult to imagine that the rights referred to as minimum guarantees in criminal proceedings would

not form, in addition to any common law and other statutory requirements, the basis of what constitutes

a fair hearing. This may be what Parliament intended, but as indicated after reading all of the materials,

including the Law Reform Commission Reports, the explanatory memorandum, and numerous overseas

authorities, I am not convinced that is what Parliament intended to be the result of the combination of

ss 6, 24 and 25 of the Charter. It is unnecessary for me to determine that issue, but I draw the

parliament’s attention to this possible interpretation of the legislation.57
While this argument has gained considerable currency amongst Charter commentators,58 it is

quite unappealing. The overriding of an express exemption to the Charter by reference to a mere

application provision is a most curious method of binding courts and tribunals to avoid the Charter. It

is far from clear what legal effect will flow from a court or tribunal having a “function” under the

right, say, to a fair hearing, nor is it obvious how such an obligation will interact with non-Charter

laws or what remedies are available if a court fails to fulfil its role. It is also highly doubtful that any

legal effect at all was intended by the drafters of s 6(2)(b). Indeed, the committee wrote:

People and organisations providing important public services should not be left uncertain about whether

they must protect fundamental human rights under the Charter; nor should the people receiving those

services be left in doubt about whether or not their rights are protected. The Committee does not want

to create ambiguities that the courts may need to resolve. This view is also consistent with the

Statement of Intent, which expresses a clear preference for Parliament to have the last say in regard to

rights protection. That goal can be achieved by setting out how far the Charter will extend with as much

clarity as possible.59

The reading of s 6(2)(b) as binding courts is especially strange given the committee’s view that

such a provision would be susceptible to constitutional challenge. A deliberate gap in the Charter’s

operation, however unfortunate, ought not to be filled by the mere happenstance of any inelegantly

drafted application provision (which, perhaps, was intended merely to allude to the interaction

between the “interpretation of legislation” regime and the rights in Pt 2).
The WA committee’s final word on the exemption of courts and tribunals in their judicial

functions was as follows:

An obligation on courts and tribunals to comply with human rights in the performance of their judicial

functions would also require them to consider human rights in every case. This obligation would arise

quite independently of any request to do so by the parties (and quite possibly notwithstanding the views

of the parties as to the appropriate resolution of the case). This may result in unpredictable outcomes in

litigation …
56 Compare Grassby v The Queen (1989) 168 CLR 1, with Deane J holding that the decision to commit must take account of rulings a judge might make at the trial. Query whether a magistrate acts compatibly with a defendant’s rights under the Charter if the magistrate relies on confessional evidence that, while arguably obtained in breach of the s 25(2)(k), would nevertheless be admissible under Victoria’s law of evidence.

57 R v Williams (2007) 16 VR 168 at [51]-[55].

58 Evans C and Evans S, Australian Bills of Rights (LexisNexis, 2008) at [1.40]-[1.44]; Hettiarachi P, Simple and Complex: Interactions Between the Common Law, Private Sphere and Human Rights Legislation in Australia (2008), http://www.hrlrc.org.au/files/R082NLUA5T/Charter%20common%20law%20private%20sphere%20CTs%20%20PIs%20-%20ph%20-%2031Mar08.pdf viewed 17 November 2008.

59 Human Rights Consultation Committee, n 28, p 54.

We note that some anomalies could arise if courts and tribunals were not required to make decisions, or

act, compatibly with human rights in the performance of their judicial functions. Many of the rights in

the draft Bill which pertain to legal proceedings, and particularly to criminal proceedings, appear to

contemplate that the courts will play an important (if not decisive) role in achieving compliance wit

these rights … No doubt there would be arguments in the courts questioning how rights such as this

could be implemented if courts and tribunals were not required to comply with human rights when

exercising their judicial functions. One answer could be that the exclusion of courts and tribunals in the

performance of their judicial functions, from the definition of a “government agency” would simply

mean that none of the remedies available under a WA Human Rights Act would be available in respect

of a failure to comply.60

It may well be that s 4(1)(j)’s true purpose was to greatly narrow the protection afforded by the

Charter. However, it is entirely wrong to assume that such narrowing will translate into more

predictable litigation.
To the contrary, the role of human rights inside Victoria’s courtrooms (including those human

rights that are about things that only courts typically do, like granting bail, trials of criminal charges

and sentencing) will, as the result of s 4(1)(j), depend on the collateral effect of two of the Charter’s

regimes:

• the interpretation regime, as it applies to statutes that apply to the courts; and

• the obligations regime, as it applies to public authorities that engage in conduct in connection

with court proceedings.

The application of these two regimes to Victorian evidence law and practice will turn on a host of

excruciating legal distinctions, including distinguishing:

• a statutory provision from the common law rules or rules of practice it recognises or gives effect

to;61

• statutory discretions that can be interpreted as general exclusionary rules from those that cannot;62

• the purposes of statutory discretions that are consistent with bars on decisions that are

incompatible with human rights from those that are not;63

• public authorities from non-public authorities;64

• “tribunals” from other public authorities;65

• courts’ and tribunals’ “administrative” capacities from their other capacities;66 and

• situations where it is reasonable for a public authority to refrain from doing something that the

ordinary rules of evidence permit from those where it is not.
Contrary to the express claims of the Charter’s supporters,67 these various difficulties can only

lead to recurrent drawn-out technical arguments, ie a lawyer’s picnic.68 Worse still, the resulting legal

effect of the Charter on the conduct of court proceedings would be, at best, a pastiche of weak
60 Consultation Committee for a Proposed WA Human Rights Act, n 48, pp 192-193.

61 For example, Crimes Act 1958 (Vic), s 399(6); cf Phillips v The Queen (1985) 159 CLR 45 at 51; Matusevich v The Queen (1977) 136 CLR 633 at 652.

62 For example, Crimes Act 1958 (Vic), s 399(6); cf Phillips v The Queen (1985) 159 CLR 45 at 57.

63 For example, R v YL (2004) 187 FLR 84 at [31] regarding the Legislation Act 2001 (ACT), s 39 as providing no barrier to interpreting Supreme Court Act 1933 (ACT), s 30, and conferring jurisdiction “necessary to administer justice” as giving courts the power to refuse to coerce a witness to testify.

64 Compare Evans and Evans, n 49 at 273-274. Query whether lawyers employed by the Legal Aid Commission are public authorities; cf Charter, s 4(5). As a matter of policy, it seems dubious that legal aid lawyers (and hence their clients’ defence) will be constrained by s 38(1), whereas privately funded lawyers are not.

65 Mental Health Review Board of Victoria Statement of Reasons No 09-003 [2008] VHMRB 1 at [134].

66 For example, R v Williams (2007) 16 VR 168 at [50]; committal proceedings in light of R v Murphy (1985) 158 CLR 596 at 616.

67 Williams G, “The Charter You Wanted”, Herald Sun (26 July 2006) p 18.

68 Compare Department of Justice and Community Safety, Human Rights Act 2004: Twelve-month Review, Report (2006) p 29, noting that reliance on the “indirect operation of the interpretative provision is unnecessarily complex and this may have an adverse effect on the growth of a broad rights dialogue”.

restraints, waxing and waning as courts drift between their administrative and non-administrative

capacities, proceedings pass in and out of the purview of suitably malleable statutory provisions and

public authorities enter and leave the courtroom.

What is all this trouble in aid of? A “unified” common law? Preserving the High Court’s position

at the apex of Australia’s courts? Keeping human rights out of private relationships? What it certainly

is not in aid of is Victorians’ rights to the fundamental court-based rights listed in Pt 2 of the Charter,

as they are affected by decisions about the admissibility and weight of evidence. Surely, leaving those

rights to be promoted in evidence law decision-making only by proxy is contrary to the Charter’s

foundational principles that human rights are “essential in a democratic and inclusive society”,

“belong to all people without discrimination” and “come with responsibilities”.69 Victoria’s courts, in

common with all other public authorities, should have the responsibility, rather than the mere

discretion, to act compatibly with (and give proper consideration to) human rights during judicial

proceedings whenever non-Charter law (or maybe just non-Charter statutes) permit.70

UNLAWFUL FACT-FINDING: THE RIGHT TO A REMEDY
The exemption of courts’ non-administrative functions removes most decisions about the admissibility

and weight of evidence from the Charter’s regime for obligations; however, many of the acts and

decisions about how evidence is gathered will remain subject to it. Most of Victoria’s investigatory

agencies (including, expressly, Victoria Police) fall squarely within the Charter’s definition of public

authority. Moreover, assuming the note to s 4(1)(j) is correct, the obligations mandate will also apply

to at least some of the pre-trial activities of courts and tribunals, notably the committal process, many

of which may produce evidence, directly or indirectly.
The obligations mandate provides that:

it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making

a decision, to fail to give proper consideration to a relevant human right.71
This mandate goes far beyond the administrative law requirements to act reasonably and to take

account of relevant considerations. Instead, the Charter requires that administrators alter their conduct

and decision-making to comply with and give consideration to all human rights, both substantive and

procedural. So, investigative bodies and pre-trial bodies will need to consider, not merely the direct

impact of an investigative technique (such as whether it is degrading or an arbitrary interference in

privacy) but also its indirect impact on a future trial (such as whether it will render such a trial unfair

or damage a defendant’s right to be presumed innocent or not to be compelled to testify against

himself or herself). Moreover, the mandate applies to all acts (which are defined to include a “failure

to act” and a proposed action),72 as well as all decisions.
Investigative and pre-trial authorities will break the law if they breach a person’s rights, fail to do

something that is required by a person’s rights or fail to give proper consideration to such a right.

However, this broad scope is matched by equally important provisos. One, of course, is that these

requirements do not apply if another law (such as the statute the body is applying) makes it

unreasonable to comply with them;73 such is the primacy that the Charter gives to all other laws,

including ones that do not emanate from Victoria’s Parliament. But a second proviso is potentially

much more crippling: the Charter does not provide any remedies of its own for any breach of the

obligations regime and potentially limits the availability of some significant non-Charter remedies.

The origins of this second proviso are in the Statement of Intent issued by Rob Hulls at the
69 Charter, Preamble.

70 Compare Human Rights Act 1998 (UK), s 6(3)(a), which expressly includes a “court or tribunal” in the definition of “public authority” and s 6(4) excising “the House of Lords in its judicial capacity” from the exemption for Parliament in s 6(3). See also s 9(1) restricting the proceedings that can be brought “in respect of a judicial act”.

71 Charter, s 38(1).

72 Charter, s 3(1).

73 Charter, s 38(2).

beginning of the so-called “community consultation” on the Charter. Hulls stated:

The Government’s approach is to address human rights issues through mechanisms that promote

dialogue, education, discussion and good practice rather than litigation … Consistent with its focus on

dispute prevention, the Government does not wish to create new individual causes of action based on

human rights breaches.74

The result is that the Charter lacks the clauses contained in comparable documents in the UK and

now the Australian Capital Territory (ACT) permitting a court to “grant the relief it considers

appropriate” (except damages) to a “victim of a contravention of” the obligations regime. Moreover, in

order to avoid the implication of such a judicial remedy for rights breaches (as has occurred in the

United States (US) and New Zealand), the Charter also contains the following section:

If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act

or decision of a public authority on the ground that the act or decision was unlawful, that person may

seek that relief or remedy on a ground of unlawfulness arising because of this Charter.75

Although much about this provision is unclear, its apparent effect is to make existing legal

remedies the exclusive vehicle for responding to breaches of the obligations mandate.

Some commentators argue that the remedies provision imposes further restrictions designed to

achieve the Attorney-General’s purpose of preventing new individual causes of action.76 Various

possible interpretations of the term “may seek” have been proposed that require claimants to make

non-Charter claims against the public authority in question before the Charter claim becomes

available, although views differ as to whether such a claim must be successful, plausible or merely

non-colourable. Either way, such a requirement would have an unfortunate effect. For example,

suppose that Victoria Police instituted a new policy of standing on public roads and peering through

people’s windows to detect evidence of a crime. Such action (while doubtless alarming) is perfectly

legal under non-Charter Victorian law, but may well be in breach of the Charter right against unlawful

or arbitrary interferences in privacy. It seems perverse that a criminal defendant who is charged on the

basis of evidence gathered through this method would first have to make (let alone succeed in) a claim

that the police had broken a regular law (like the tort of nuisance) before they can seek a remedy for

a breach of the Charter obligations regime.77 In particular, it is difficult to see how such an approach

furthers the Attorney-General’s goal of alternative dispute resolution.

However, even if the section lacks these unnecessary bars to litigation, it still poses a major

barrier to reliance on the Charter by criminal defendants seeking a remedy for rights-incompatible acts

or decisions by criminal investigators or prosecutors. The committee’s discussion of those existing

remedies spoke primarily of administrative law remedies: judicial review and declarations. However,

there is a major difficulty with using either of these remedies in a criminal law context; they are civil

remedies and Australian courts discourage their use in criminal matters:

The powers of the courts in their several criminal jurisdictions are wider and more effective than the

powers to make the declaration of, and to make ancillary orders to enforce, a right, if it exists, in the

way sought in proceedings such as the present. In particular, the powers and discretions of the judge

who presides at a criminal trial … are more ample …

Quite apart from the wider powers and discretions of the courts exercising criminal jurisdiction, they are

in a superior position to determine and direct what should be done, and when it should be done. They

have ready access to the relevant circumstances which must include the nature of the charge and the

demands of the pending trial. All the foregoing circumstances make it totally inappropriate to seek the

74 Hulls R, Human Rights in Victoria: Statement of Intent (Department of Justice, 2005) p 3.

75 Charter, s 39(1).

76 Pound A and Evans K, An Annotated Guide to the Victorian Charter of Human Rights and Responsibilities (Lawbook Co., 2008) at [5160].

77 For an apparent instance of such pointless legal arguments, see the judicial review arguments addressed in Sabet v Medical Practitioners Board of Victoria [2008] VSC 346 at [42]-[101].

intervention of the civil courts, in proceedings … or for the civil courts to exercise any discretion they

have to intervene, even assuming the relevant right could be established.78

Indeed, there are a plethora of statutory provisions barring the use of civil remedies against many

of the public authorities responsible for criminal justice.79 Accordingly, those remedies will not be

available for breaches of the Charter. The result is that, if the Charter is to be applied to remedy

breaches of rights involved in the gathering of evidence, then those remedies will have to be sought at

the criminal trial itself. While the trial context certainly avoids some of the standing issues discussed

above, it also creates significant new barriers for successful Charter claims.

First, if defendants have to seek remedies in the trial itself, rather than in separate collateral

proceedings, then they are much more likely to fall within the terms of the Charter’s transitional

provision, which provides that the Charter “does not affect proceedings commenced … before”

1 January 2007.80 This section has been interpreted as applying to all criminal proceedings where

charges were laid in 2006 or earlier.81 The result of this unfortunate provision is that such defendants

cannot rely on either the interpretation or obligations regime, even in respect of evidence gathered

after – even long after – the Charter’s full commencement date of 2008. Arguably, these consequences

would apply in collateral civil proceedings commenced more recently.82

Secondly, the vesting of all remedies in the hands of a criminal trial judge means that they are all

made by a decision-maker who is exempt from the definition of public authority, ie a court exercising

a non-administrative function. By contrast, there is at least some possibility that collateral civil

remedies, perhaps those sought in the Victorian Civil and Administrative Tribunal, are administrative

functions. The significance of this is whether or not any discretion involved in granting a remedy

needs to be exercised in a way that is compatible with the defendant’s Charter rights and involves

giving proper consideration to them.83
The clearest example of where this matters is the evidence law rule on the admissibility of

illegally or improperly obtained evidence, which requires a judge to balance two competing matters:

the costs of admitting such evidence and the costs of rejecting it. The correct balance to be struck is

perceived by many jurisdictions as determined by human rights concerns. However, while the Charter

may have an effect on the scope of such rules, it cannot have an effect on their operation, with the

result that the traditional Australian approach will remain. Indeed, the Evidence Act 2008 neglects to

even provide that the Charter is a factor to be considered in exercising this discretion, instead

(presumably to conform with the uniform evidence legislation in other jurisdictions) requiring

Victorian courts to consider the rights in the International Covenant on Civil and Political Rights

(ICCPR), which differ from (and in some respects are narrower than) the Charter rights.84

Finally, and perhaps most significantly, the terms of the Charter’s remedies provision – perhaps

reflecting the administrative law bias of its drafters – only provide for a “relief or remedy” available

under non-Charter law for conduct “on the ground that [the conduct] was unlawful”.85

In the law of evidence, unlawful conduct is, on its own, a side issue in decisions about how to find

facts. Indeed, the original common law approach to unlawfulness was that it had no consequences in
78 Smith v Commissioner for Corrective Services [1978] 1 NSWLR 317 at 320-321.

79 For example, Public Prosecutions Act 1994 (Vic), s 47; definition of “tribunal” in the Administrative Law Act 1978 (Vic) (excluding courts, bodies presided over by a judge and bodies not required to obey natural justice).

80 Charter, s 49(2).

81 R v Williams (2007) 16 VR 168 at [40]-[48]; see Re BAE Systems Australia Ltd (Anti-Discrimination) [2008] VCAT 1799 at [62], holding that s 2 of the Charter also prevents the application of the interpretation mandate or the obligations mandate in proceedings commenced in 2007 as well.

82 Gans J, “Transition Trouble” (2008) 82 LIJ 54.

83 Charter, s 4(1)(j).

84 Evidence Act 2008 (Vic), s 138(3)(f).

85 Emphasis added; cf Human Rights Act 1998 (UK), s 7(1)(b), permitting “victims” of a breach of its obligations regime to “rely on the Convention right or rights concerned in any legal proceedings” and s 8(1), empowering a court to “grant such relief or remedy, or make such order, within its powers as it considers appropriate … [i]n relation to any act … of a public authority which the court finds is … unlawful” under the United Kingdom obligations regime (emphasis added). The argument put in this

and of itself: “It matters not how you get it; if you steal it even, it would be admissible.”86 Rather,

evidence law’s strongest remedies are triggered by conduct that might affect the fairness of trials or

the propriety of the verdict. Pre-trial illegality, while never determinative of that issue, might

nevertheless affect how such conduct is characterised and influence the court’s decision on whether or

not to provide relief. In 2007, the Supreme Court of Norfolk Island had to determine whether to admit

statements made by the defendant while in the custody of New Zealand police and awaiting

extradition to Australia. The court held that any breaches by New Zealand police of the requirements

of that country’s Bill of Rights would be relevant to the question of whether the statements should be

excluded as unreliable, unfair or improperly obtained.87 In Victoria, a breach of an applicable human

rights regime would presumably be similarly relevant to common law remedies based on assessments

of voluntariness, oppression, unfairness, prejudice, abuse of process or conduct in breach of

community standards.88 However, the Charter’s remedies provision would not pick up any of these

remedies, as illegality is neither a necessary nor sufficient condition for any of them.89 So,

paradoxically, when considering evidence obtained through a joint operation in New Zealand and

Victoria, a Victorian court could take account of any breaches of New Zealand’s Bill of Rights when

applying these remedies, but not any breaches of the Charter’s obligations regime.

Australian evidence law does have a remedy specifically for unlawful conduct – the so-called

“public policy discretion” – but it is a weak remedy in many respects. The exclusionary rule

developed by the High Court, unlike its counterpart in the US, does not aim to either promote people’s

rights or deter unlawful behaviour. Rather, its purpose is to ensure that “the reception of the evidence

thus provided does not demean the court as a tribunal whose concern is in upholding the law”.90 While

in theory Australian courts can exclude illegally obtained evidence on the grounds that to do otherwise

would leave them tainted, in practice they often choose to admit the evidence on the grounds that to

do otherwise would leave them exposed to public criticism for freeing a criminal “on a technicality”.91

The result is that exclusions, especially in serious criminal trials where the illegally obtained evidence

was important (eg DNA evidence in murder or rape trials), are rare.92 The same is true under the

article would still have been applicable to the different provision drafted by the Human Rights Consultation Committee at cl 40(1) of its draft, as it was also limited to a “relief or remedy [that] would have been available had the act or decision been unlawful apart from this Charter” (emphasis added).
86 R v Leatham (1861) 8 Cox CC 498 at 501; 121 ER 589, approved in Kuruma v The Queen [1955] AC 197 at 203. The High Court of Australia rejected this approach in the 1970s, citing Holmes J’s dissent in Olmstead v United States 277 US 438 at 470 (1927) that it may be “a less evil that some criminals should escape than that the Government should play an ignoble part”: Bunning v Cross (1978) 141 CLR 54 at 78.

87 R v McNeill (Ruling No 1) (2007) 209 FLR 124 at [189]-[198], considering alleged breaches of s 23(1)(a), (b) and (c) of the New Zealand Bill of Rights Act 1990 (NZ), as well as the New Zealand approach to admissibility of evidence obtained in breach of that Act (see R v Shaheed [2002] 2 NZLR 377), when making rulings on admissibility under the Evidence Act 2004 (NI), ss 85 (cf at [251]-[252]), 90 (cf at [289]-[290]) and 138 (cf at [309]-[310], [322](d)). Section 138’s provisions on illegality were not applicable, as they are limited to breaches of Norfolk Island law (cf at [190]). See also at [322](f) briefly dismissing any breach of the International Covenant on Civil and Political Rights (ICCPR).

88 See Gans and Palmer, n 21, pp 142-144, 335-342, 421-423, 476-498.

89 Compare Evans and Evans, n 49 at 280, suggesting that the remedy of staying proceedings would be available “where there has been an impropriety by the Crown” under the obligations regime. Query whether the stay remedy is one that arises “on the ground that [an] act or decision was unlawful”, as opposed to when the court determines that permitting further proceedings would be an abuse of process, a ground for which illegality is neither a necessary nor sufficient condition. See also Pound and Evans, n 76 at [5200], arguing that “ground of unlawfulness” can be “read purposively so as to include remedies which, although not ultimately turning on a question of unlawfulness, embrace unlawfulness as a relevant fact in the exercise of the discretion”. This assumes, of course, that the “purpose” of s 39(1) of the Charter can be readily ascertained.

90 Bunning v Cross (1978) 141 CLR 54 at 78-81.

91 See Gans and Palmer, n 21, pp 430-435.

92 Presser B, “Research Note: Public Policy, Police Interest: A Re-Evaluation of the Judicial Discretion to Exclude Improperly or Illegally Obtained Evidence” (2001) 25 MULR 757 at 776-781, finding exclusion in only 15% of studied cases, noting courts’ willingness to downplay unlawful conduct as accidental and unwillingness to exclude evidence in serious or drug cases. See also the studies cited by Presser at fns 6 and 7.

slightly stricter statutory rule under the uniform evidence legislation.93 Both rules, but especially the

common law one, are also hedged by limitations, such as the requirement of a causal link between the

illegality and the evidence obtained and the common law rule that the illegal conduct must be by a

“law enforcement authority”.94
A simple example of the restricted way the Charter’s remedies regime operates in relation to

evidence law is a WA case, recently before the High Court, where a foolish man being investigated for

armed robbery boasted about his criminal prowess to his guards while in the lockup.95 His admissions

were caught on a surveillance camera, supplying a precondition for admissibility under the state’s

evidence law.96 If the Charter applied, the decision to install the camera would arguably be in breach

of the police’s obligations to act compatibly with detainees’ right to privacy.97 However, a Victorian

court applying the most relevant evidence law remedy – the exclusionary rule for admission obtained

at a price that the community would find unacceptable98 – could not take account of the fact that the

camera was installed unlawfully under the Charter in determining whether the community’s standards,

which differ from legal standards,99 were breached. The “public policy discretion” would be available,

but the admissions would be unlikely to be excluded, given the seriousness of the crime being

investigated, the importance of the admissions and the investigating officers’ lack of involvement in

the installation of the camera.100
A more complex example is a recent South Australian (SA) case where a driver, after testing

positive to a random breath test, went to the emergency room of the Royal Adelaide Hospital to have

a blood test taken but was kept waiting so long that his negative result was incapable of rebutting the

result of the earlier breath test. A majority of the Court of Criminal Appeal rejected the defendant’s

argument that the breath test should have been excluded at the defendant’s subsequent trial for drink

driving. The court held that the public policy discretion was inapplicable because the police had

complied with all applicable laws, which only required them to supply the defendant with a

blood-testing kit.101 The defendant also argued that the breath test results should be excluded on the

ground of unfairness, given that he was unable to test the results through the only mechanism allowed

to him – a timely blood test – through no fault of his own. A majority of the court held that this

remedy was unavailable to the defendant, absent any reason to doubt the reliability of the breath test,

because no-one else was at fault.102

93 Presser, n 92 at 782-783; cf R v Caruso [2006] ACTSC 45 at [38]-[39].

94 R v Lobban (2000) 77 SASR 24 at [39]-[41] (special leave refused by the High Court); see Transcript of Proceedings, Lobban v The Queen (High Court of Australia, No A21/2000, 1 June 2001); affirmed Police v Hall (2006) 95 SASR 482; cf R v Caruso [2006] ACTSC 45 at [37].

95 Carr v Western Australia (2007) 232 CLR 138.

96 Criminal Code (WA), s 570D(2)(a).

97 One argument could be that the legislative authority (relied on by the Crown in Carr v The Queen [2007] HCATrans 143) to install the surveillance device, s 6(3)(b)(i) of the Surveillance Devices Act 1998 (WA) (a blanket exemption for all law enforcement officers from the statutory requirement of a warrant, where the law enforcement is a party to the activity recorded – cf Surveillance Devices Act 1999 (Vic), s 6(2)(c)) is too broad to prevent unlawful or arbitrary interferences with privacy; cf United Nations Human Rights Committee, General Comment No 16: The Right to Respect of Privacy, Family, Home and Correspondence, and Protection of Honour and Reputation (Art 17) (1988) at [3], [8].

98 R v Swaffıeld (1998) 192 CLR 159 at [69]-[70]; cf Evidence Act 2008 (Vic), s 90.

99 Gans and Palmer, n 21, p 488.

100 Carr v Western Australia (2006) 166 A Crim R 1 at [52]-[56].

101 Road Traffıc Act 1961 (SA), s 47G(2a) (now re-numbered as s 47K(2a)); cf Road Safety Act 1986 (Vic), s 55(10), which requires a police officer, on request, “to arrange” for a blood sample to be taken; see Police v Hall (2006) 95 SASR 482 at [100]-[112] (on the change in the SA provisions).

102 Police v Hall (2006) 95 SASR 482 at [78].

If this same series of events occurred in Victoria under the Charter, it could be argued that the

hospital – a public authority103 – in deciding to prioritise other patients over the defendant, failed to

take account of his right to a fair hearing under s 24(1);104 however, even if a court found that the

hospital’s delay was therefore illegal under s 38(1), there would be no consequences for the

admissibility of the breath test. The public policy discretion would still not apply for three reasons: (1)

the illegal conduct was not by a “law enforcement authority”; (2) the illegal conduct came after the

breath test; and (3) the breath test was too important and the illegality too mild to warrant exclusion.

Moreover, the unfairness discretion, which is not limited in any of these respects, could not be used

either, even though the hospital’s breach of s 38(1) would supply the necessary fault in another’s

conduct that was lacking in SA. A Victorian court would be forbidden from taking a breach of the

Charter’s obligations regime into account when applying the unfairness discretion, because

unlawfulness is merely relevant to that remedy, but is neither a necessary or sufficient ground for its

application.
In short, s 39(1) goes too far in its attempt to constrain the Charter’s legal effect within the

boundaries of non-Charter laws. Limiting the remedies for breaches of the Charter to those provided

by non-Charter laws actually confines the available remedies to those for unlawful conduct per se,

excluding evidence law’s more nuanced and stronger remedies where illegality is merely a factor –

perhaps a significant one – amongst many. In these respects, Victoria may well be worse off than the

current Human Rights Act 2004 (ACT) – and the New Zealand Bill of Rights Act 1990 (NZ) – which

are silent on remedies, therefore allowing the possibility, realised in New Zealand, of the flexible relief

of breaches of human rights that play out in the field of evidence law. Recent amendments in the ACT

– in line with the UK Act – permits “victims” of a breach of human rights by a public authority to

“rely on the Convention right or rights concerned in any legal proceedings”, a formulation that permits

courts to take account of a public authority’s breach of a person’s human rights when applying

remedies on grounds other than unlawfulness.105

LAWFUL FACT-FINDING: THE REMEDY FOR RESPONSIBILITY
The above discussion of the legal effect of the Charter could be seen as missing the point.106 The

Charter’s primary purpose is not to change the law directly, but rather to have an indirect impact,

through the creation of a human rights culture.107 From that perspective, the interpretation, obligations

and remedies regimes are less important than the Charter’s wholly procedural provisions, including

the regime for parliamentary scrutiny and the Supreme Court’s power to issue a “declaration of

inconsistent interpretation”.108 On some views, the Charter’s main contribution is to facilitate a

dialogue between the courts and Parliament on human rights.109
103 Charter, s 4(1)(b), including “an entity established by a statutory provision that has functions of a public nature” (cf South Australian Health Commission Act 1976 (SA), s 27, providing for the incorporation of hospitals, one of which is the Royal Adelaide Hospital: see http://www.rah.sa.gov.au/aboutrah/aboutrah.php viewed 13 May 2007). Royal Melbourne Hospital, eg is also likely to be within the definition of public authority as “an entity whose functions are or include functions of a public nature, when it is exercising those functions on behalf of the State or a public authority” (s 4(1)(c)), as it is owned by Melbourne Health, which is funded (cf s 4(2)(d)) and, it appears, wholly-owned by the State (cf s 4(2)(e)).

104 This would depend on why the delay occurred. One possibility is that the staff relegated the defendant to the end of the waiting list as a person without any health issues, something that arguably fails to consider his needs as a person facing criminal charges. See Police v Hall (2006) 95 SASR 482 at fn 26 to the effect that the delays experienced by the defendant are a regular occurrence in South Australia.

105 Human Rights (Amendment) Act 2008 (ACT); cf Human Rights Act 1998 (UK), s 7(1)(b).

106Williams G, “The Victorian Charter of Human Rights and Responsibilities: Origins and Scope” (2007) 30 MULR 880 at 903: “To focus narrowly on the Victorian Charter of Rights as it applies to courts is to misunderstand its operation and to take far too limited a perspective of its significance.”

107 Human Rights Consultation Committee, n 28, Ch 5.

108 Charter, s 36.

109 Williams, n 106 at 901-903, citing Hogg P and Bushell A, “The Charter Dialogue Between Courts and Legislatures (Or Perhaps the Charter of Rights Isn’t Such a Bad Thing After All)” (1997) 35 Osgoode Hall LJ 75.

While the general utility of the “dialogue” concept continues to be debated, this article is only

concerned with its role in relation to evidence law. One starting point of this dialogue is the statement of compatibility, explaining how each bill is compatible with human rights. Interestingly, while statements for new bills typically consist of detailed section-by-section discussion of all rights engaged by the bills, Attorney-General Rob Hulls’s statement on the Evidence Bill 2008 differed from this pattern with respect to the right to a fair hearing:

The right is afforded to persons charged with a criminal offence and parties to civil proceedings. However, what amounts to a “fair” hearing takes account of all relevant interests including those of the accused, the victim, witnesses and society … The balancing of rights required by the charter has essentially been undertaken by both the Australian Law Reform Commission and the Victorian Law Reform Commission on whose reports this bill is based. In addition, in most cases the courts are given a broad discretion, which will ensure that the provisions are applied to ensure a fair hearing in the individual circumstances of the case. Further, clause 11 of the bill expressly preserves the powers of a court with respect to abuse of process. For these reasons, I have not included in this statement of compatibility a detailed analysis of the application of the balancing exercise in respect of each of the

provisions of the bill.110
The Scrutiny of Acts and Regulations Committee, in its mandatory report on the Bill, was

concerned that the Attorney-General did not provide a detailed analysis of the impact of individual sections of the Bill – notably those that allowed for the admission of prosecution evidence previously excluded by the common law and the exclusion of some evidence of innocence – on the Charter’s core procedural right.111 It is difficult to see how the dialogue is furthered by the mere claim of balance, much less when the balancing was done by bodies that had no regard to the Charter. Moreover, the reference to the preservation of the courts’ powers neglects the courts’ own exemption from the Charter112 and, as will be discussed, the unavailability of such judicial remedies to circumvent a statutory provision.

The potential non-amenability of evidence law to the rights dialogue envisaged by the Charter, at least with respect to the right to a fair hearing, may well extend beyond the parliamentary scrutiny process. The Supreme Court of Victoria’s new power to issue a “declaration of inconsistent interpretation” is only triggered if the court is of the “opinion that a statutory provision cannot be interpreted consistently with a human right”.113 While all Victorian courts must routinely determine whether a particular proceeding is fair, the formation of an opinion that a statutory provision is fair is entirely different. In the 1990s, the High Court of Australia baulked at a suggestion that findings about the fairness of a statutory provision can be an appropriate trigger for remedial action by a court. The court was asked to grant special leave to consider a series of cases where trial judges had been asked to stay criminal trials of rape defendants on the ground that NSW’s rape shield law, the world’s strictest, had excluded evidence that was relevant to the defence case.114 A majority of the court refused special leave in the following terms:

To grant special leave would be to elevate to the level of arguability the proposition that a court may decline to exercise its jurisdiction to try a criminal case because it forms the view that a law enacted by

110 Victoria, Legislative Assembly, Parliamentary Debates (26 June 2008) p 2632.

111 Scrutiny of Acts and Regulations Committee, Alert Digest No 9 of 2008, pp 11-12.

112 Charter, s 4(1)(j).

113 Charter, s 36(2). Compare the different wording of s 32(1), referring to whether a provision can be interpreted “in a way that is compatible with human rights” and the limitation (not present in s 36(2)) to when “it is possible to do so consistently with [the statutory provision’s] purpose”; cf Brennan G, “Introduction to Human Rights Law: Seminar – Part II” (2007) 81 ALJ 248 at 252. Note also the procedural requirements of a proceeding where “a question arises that relates to the application of this Charter or a question arises with respect to the interpretation of a statutory provision in accordance with this Charter” (s 36(1)) (and query whether the latter arises when no-one suggests that a statutory provision can be interpreted in any alternative way) and of a notice to the Attorney-General and the Victorian Equal Opportunity and Human Rights Commission (s 36(3)).

114 Crimes Act 1900 (NSW), s 409B (now Criminal Procedure Act 1986 (NSW), s 293).

the Parliament is unfair. That is not a view to which a court is entitled to give effect in determining

whether to exercise its jurisdiction when it is properly invoked.115

This pronouncement may be read in a number of ways, possibly with different implications for

the Supreme Court of Victoria’s role under the Charter.116 This article’s concern is that it reflects a

view that, in an Australian context, the notion of a “fair” trial is commensurate with one that is

“according to law”. This reading is based on the arguments put by one of the barristers in the High

Court:
It is fundamental to our system of criminal justice that a person should not be convicted of an offence

save after a fair trial according to law. The expression “fair trial according to law” is not a tautology. In

most cases a trial is fair if conducted according to law, and unfair if not. If out legal processes were

perfect that would be so in every case. But the law recognizes that sometimes, despite the best efforts of

all concerned, a trial may be unfair even though conducted strictly in accordance with law. Thus, the

overriding qualification and universal criterion of fairness.117
This argument was not well received by at least two members of the High Court:

BRENNAN CJ: However you describe it, the proposition is: because it is according to law, it will not

be a fair trial?

MR BODOR: Yes.

BRENNAN CJ: How can that be?

MR BODOR: Because the evidence is available which demonstrates that any attack, if I can call it that,

upon the complainant must be incomplete, it cannot be assessed in its true context, in its true light.

McHUGH J: But that overlooks the view that Parliament took a considered decision. They were not

lacking people when this legislation was introduced to warn those who had the carriage of this matter as

to what the result of this sort of legislation could bring about, but Parliament went ahead and legislated.

That being so, how could a trial be regarded as fair [sic unfair] when the Parliament has said this

evidence has to be excluded?118

If these views were applied to interpret s 24(1) of the Charter, then the right to a “fair hearing”

would be equated with a right to the application of the current rules of evidence. While this is by no

means an empty right, it is one that is subject to the same defects that Part I of this article identified in

relation to Charter rights that are expressly limited to unlawful interferences or that contain exceptions

115 PJE v The Queen [1996] HCATrans 353. See also Berrigan v The Queen [1995] HCATrans 389, holding that: “The correct application of the provision cannot of itself found an argument that the trial was unfair.”

116 On one reading, it will not be applicable in Victoria from 2008, because the Charter’s interpretation regime gives Victoria’s courts a jurisdiction (albeit a limited one) to act on any opinion it forms that a statutory provision is unfair. On another reading, the High Court’s position remains apposite, in light of s 36(5) of the Charter, holding that the making of a declaration of inconsistent interpretation neither affects “the validity, operation or enforcement” of any statutory provision nor gives legal rights to anyone. On a third reading, the remarks signal a possible constitutional problem with the Charter’s provisions on declarations of inconsistent interpretation, on the basis that they give the Supreme Court a legislative role that is incompatible with its role in exercising federal jurisdiction: Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.

117 PJE v The Queen [1996] HCATrans 353.

118 PJE v The Queen [1996] HCATrans 353. Counsel also raised the hypothetical of it being (literally) gagged at a special leave application. McHugh J noted that the accused can (and has been) metaphorically gagged and raised the hypothetical of Parliament legislating that “[u]pon arrest there’s a presumption of guilty”, asking “[b]ut what would a court do?” See also Berrigan v The Queen [1995] HCATrans 389, where McHugh J said: “That is really a staggering proposition. How can a trial be unfair if it is conducted in accordance with the law?” and “[I]f the legislature say that a trial is to be conducted without this evidence, it is obviously the legislative judgment that such a trial is not unfair. How can a court say it is unfair?”

where the law otherwise provides.119 Such rights are always compatible with clear existing laws,

leaving the scrutiny and interpretation regimes inapplicable and removing the law reform benefits that

flow from subjecting laws to the test in s 7(2).120
The potential failure of a human rights dialogue with respect to evidence law is not limited to the

judicial end of the conversation. Assuming that a court is willing to declare that part of the law of

evidence is incompatible with a human right, will the legislative and executive branches respond?

Australian evidence law has at least one celebrated example of governments responding to

rights-focused judicial criticism with both changed conduct and new statutes. In the 1970s and 1980s,

the High Court repeatedly dealt with appeals where the defendants claimed that evidence of

confessions they had allegedly made was the product of police “verballing”.121 Eventually in 1991, a

majority of the High Court, noting that some jurisdictions had begun recording all interviews with

suspects, held that the content of “the entitlement of an accused person to a fair trial according to law

… may vary with … developments in technology” and stated that all jurors must be told of the court’s

view that convictions on the basis of uncorroborated confessions are dangerous.122 Within the next

five years, all Australian jurisdictions introduced recording equipment in police stations and enacted

statutes excluding confessions from suspects that are not evidenced by tape recordings of the whole

interview.123

However, this example of a dialogue between the judicial, legislative and executive branches of

government differs from one that would occur under the Charter in a crucial way: the High Court’s

1991 pronouncement was backed by a remedial measure – a mandatory jury direction – that would not

be available for legislation that is incompatible with a Charter right.124 In WA, the difference was

more stark, because the Executive initially refused to proclaim the legislation that the Parliament had
119 Compare the hypothetical that emerged at the conclusion of the High Court proceedings in PJE v The Queen [1996] HCATrans 353:

MR KINTOMANIS: If Parliament was to reintroduce the Test Act and deprive Roman Catholics of certain privileges

like giving evidence in court, so if you were stuck with a Roman Catholic witness you would be in difficulties, one

could not say that there would be a fair trial.

McHUGH J: Why not?

KIRBY J: It seems very unfair to me.

BRENNAN CJ: I think your time is up, Mr Kintominas. You are saved by the bell perhaps.

See also Berrigan v The Queen [1995] HCATrans 389, where McHugh J posed the following hypothetical: “[S]upposing the legislature said hearsay evidence is admissible in all criminal trials and it does not matter how removed the hearsay is. Could a court then say there is a miscarriage of justice because an innocent man may have been convicted; he has been convicted entirely on hearsay evidence; nobody has had a chance to cross-examine the person who is the source of this hearsay material?”; cf Military Commissions Act 2006 (USA), inserting 10 USC 47A, §§ 949A(b)(2)(E) (hearsay evidence) and 949D(f) (introduction of classified information).

120 Compare the High Court’s approach to the same New South Wales statutory provision during an appeal four years later, where the argument based on a fair trial was again raised: HG v The Queen (1999) 197 CLR 414 at [46]-[47]. The High Court held that the provision’s ban on “evidence of sexual experience … and sexual activity” extended to evidence of non-consensual sex, making no reference to the court’s earlier unanimous view, in a case involving such evidence, that the operation of the provision required legislative attention (PJE v The Queen [1996] HCATrans 353): at [28]-[31], [67]-[70], [92], [124],

[146]-[147]. The result – a quite disturbing one in this author’s view – is that the defendant’s conviction for child sexual abuse was sustained even though he had been unable to present his primary defence theory. An expert witness who, after interviewing the complainant, had concluded that the account of abuse by the defendant was likely to be a transference from a much earlier episode of abuse at the hands of another.

121 See, eg Driscoll v The Queen (1977) 137 CLR 517; Wright v The Queen (1977) 15 ALR 305; Carr v The Queen (1988) 165 CLR 314; Duke v The Queen (1989) 180 CLR 508.

122 McKinney v The Queen (1991) 171 CLR 468 at 474-478, but see at 485-486, where Brennan J held that a new rule “designed to compel or to induce the executive government to enhance the administration of justice for which the executive government is responsible … is more appropriate to the exercise of legislative power than it is to the exercise of judicial power”.

123 See Gans and Palmer, n 21, pp 498-505.

124 Charter, s 36(5); cf s 39(1).

enacted. This impasse was broken only when the WA Court of Criminal Appeal, after decrying theExecutive’s failure, announced its intention to exclude future confessions uncorroborated by tape recordings.125
Section 36(5)(b) of the Charter holds that “a declaration of inconsistent interpretation does not … create in any person any legal right”. Rather, a declaration’s sole legal effect is that the minister responsible for the statutory provision must respond in writing within six months. Will Victoria’s Government do anything more if a declaration of inconsistent interpretation is issued in relation to a provision of Victoria’s evidence law? In the NSW rape shield case discussed above, the High Court, after rejecting the argument that courts can give effect to a view they form that an enacted statutory provision is unfair, added the following remark:

It is the unanimous view of the Court … that the provisions … clearly warrant further consideration by the legislature in the light of the experience of its operation.126

This pronouncement, while avoiding any reference to human rights, is nevertheless in many

respects analogous to (and was presumably intended to have a similar effect to) a declaration of inconsistent interpretation under the Charter. Significantly, the NSW Government’s response was to refer the rape shield provision to the NSW Law Reform Commission. The commission, noting the fundamental nature of the presumption of innocence and the right to a fair trial, recommended significant changes to the law.127

This sequence resembles exactly the sort of dialogue that the Charter is supposed to promote. However, nearly a decade later, none of the commission’s proposals have been implemented, with the government’s only reaction to date being a call for further research.128 More significantly, NSW’s rape shield provision remains on the statute books unaltered except for its location.129 It might be argued that this is entirely consistent with the kind of dialogue the Charter envisages, which leaves the final decision to the legislature.130 However, an alternative explanation lies in the political limits to law reform. Two other factors might have stayed the government’s hand. First, the commission’s proposals sparked furious responses from different lobby groups on criminal justice, which produced little if any

common ground.131 Secondly, NSW politics has long been locked in a series of “law and order” auctions, with rape defendants featuring as a recurrent source of moral panic.132

Arguably, the type of dialogue that the Charter envisages cannot occur in these circumstances.
So, the Charter has much to overcome if it is to promote evidence law reform that corresponds to the human rights in Pt 2. Courts may regard much of the law of evidence as inherently compatible with the core right to a “fair hearing” under s 24(1). Any declaration of inconsistent interpretation may lead to a discussion, but not a dialogue, because evidence law’s competing goals can produce intractable opposing views. Moreover, evidence law’s low priority on the agenda of Australian governments, especially where criminal defendants’ rights are concerned, may mean that no reforms follow. Notably, the major evidence law reforms in recent years, the model evidence legislation and sexual assault law reform, emerged not from a court-prompted human rights agenda, but rather as a traditional law reform response to outmoded common law jurisprudence.
125 Mallard v The Queen (unreported, WA Court of Criminal Appeal, No CCA 204 of 1995, 11 September 1996). The court refused to apply this rule retrospectively to the facts before it; cf Transcript of Proceedings, Mallard v The Queen (High Court of Australia, No P52/1996, 24 October 1997). Ten years later, Andrew Mallard joined the ranks of victims of Australian miscarriages of justice: Mallard v The Queen (2005) 224 CLR 125.

126 PJE v The Queen [1996] HCATrans 353.

127 New South Wales Law Reform Commission, Review of Section 409B of the Crimes Act 1900 (NSW), Report No 87 (1998).

128 Criminal Justice Sexual Offences Taskforce, Responding to Sexual Assault: The Way Forward (2005) p 61.

129 Criminal Procedure Act 1986 (NSW), s 293.

130 Compare Evans and Evans, n 49 at 271.

131 See Criminal Justice Sexual Offences Taskforce, n 128, pp 59-60, noting a “clear division” on the New South Wales Law Reform Commission’s central recommendation and the “unlikelihood of resolving this issue”.

132 See Hogg R and Brown D, Rethinking Law and Order (Pluto Press, 1998).

Paradoxically, the success of the model evidence law reforms may act as a further brake to the

rights-focused reform of Victoria’s law of evidence. The new Evidence Act 2008 is the product of an

inquiry by the Australian Law Reform Commission in the 1980s133 and has been adopted by the

Commonwealth Government (in a law applicable in the ACT) and in NSW, Norfolk Island and

Tasmania.134 Not only Victoria, but also the Northern Territory (NT) and WA are moving, to some

degree, towards adopting the legislation.135 While the initial impetus for the model legislation was to

improve upon the common law, the contemporary momentum is the drive to “harmonise” Australia’s

laws.136 As the NT Law Reform Commission observed in its brief report recommending adoption of

the legislation in that jurisdiction, failure to do so may leave non-adopters “stand[ing] out like an

outhouse [sic] in the desert”.137

This impact of the drive to uniformity on the rights dialogue is evident in Victoria’s adoption of a

provision protecting a defendant’s family members from being compelled to testify if doing so would

harm their relationship with the defendant, unless a judge provides otherwise. Despite the Charter’s

express right for Aboriginal persons “to maintain their kinship ties”, the provision is limited to close

family members.138 This discrepancy, unconvincingly justified in the statement of compatibility as

necessary to avoid this flexible provision’s application to “a very broad class of people”, is obviously

due to a concern to retain uniformity with jurisdictions that have no such imperative to consider

Charter rights.

The Evidence Act 2008’s goal of uniformity139 may also blunt the operation of the Charter’s

operative provisions. Consider the following mechanisms that exist to promote consistency across

jurisdictions that have adopted the legislation:

• in-statute notes detailing where provisions (which have common numbering across all the

statutes) differ from other jurisdictions;140

• joint participation of all jurisdictions (including jurisdictions yet to enact the legislation) in law

reform commission inquiries into evidence law;141

• a recommendation that no jurisdiction amend its legislation without that amendment being

approved by the Standing Committee of Attorneys-General;142 and

• court judgments favouring comity across jurisdictions that have adopted the legislation and

sympathetic development of the common law in jurisdictions that have not.143
133 Australian Law Reform Commission, Evidence, Report No 26 (1985); Australian Law Reform Commission, Evidence, Report No 38 (1987).

134 Evidence Act 1995 (Cth) (applicable in the Australian Capital Territory: s 4); Evidence Act 1995 (NSW); Evidence Act 2001 (Tas); Evidence Act 2004 (NI).

135 Northern Territory Law Reform Committee, Report on the Uniform Evidence Act, Report No 30 (2006); Law Reform Commission of Western Australia, Review of the Criminal and Civil Justice System in Western Australia, Project No 92 (1999); cf Queensland Law Reform Commission, A Review of the Uniform Evidence Acts, Report No 60 (2005), p 8, noting “those provisions that would require further review if Queensland were to consider adopting the uniform Evidence Acts”; Australian Law Reform Commission, Submission to House of Representatives Standing Committee on Legal and Constitutional Affairs’s Inquiry Into Harmonisation of Legal Systems (2006) p 4, stating that it has been advised that South Australia’s Attorney-General has “placed the introduction of the uniform evidence legislation on [its] legislative agenda”.

136 House of Representatives Standing Committee on Legal and Constitutional Affairs, Harmonisation of Legal Systems Within Australia and Between Australia and New Zealand (2006) pp 155-160.

137 Northern Territory Law Reform Committee, n 135, p 12.

138 Evidence Act 2008 (Vic), s 18(2).

139 Evidence Act 2008 (Vic), s 1, describing the statute’s purpose as “to make fresh provision for the law of evidence that is uniform with Commonwealth and New South Wales law”.

140 Compare Evidence Act 2001 (Tas), s 2A.

141 Australian Law Reform Commission, Uniform Evidence Law, Report No 102 (2005) pp 40-41.

142 House of Representatives Standing Committee on Legal and Constitutional Affairs, n 136, p 160.

143 See Gans and Palmer, n 21, pp 18-20.

Every time a Victorian court is compelled by the Charter to interpret a provision of the Evidence Act 2008 differently from the interpretation followed elsewhere, the Victorian statute will effectively be amended (without any in-statute note to that effect, joint law reform effort, approval by the Standing Committee of Attorneys-General, or broadly applicable court ruling).

Not only will this result in lack of harmonisation between Victoria and other Australian

jurisdictions, but there will also be disharmony within Victoria in two respects. One is that the

Evidence Act 1995 (Cth), applicable in all Federal Court proceedings within Victoria,144 will not be subject to the Charter, whereas Victoria’s statute, applicable in all State courts, including those hearing federal matters, will be. A second is that even the Victorian statute will potentially not be subject to the Charter with respect to some proceedings in State courts. This is the result of the Charter’s poorly drafted and conceived transitional provisions, which, while applying the Charter to all legislation, past or future,145 nevertheless provide that the “Charter does not affect any proceedings commenced or concluded” before 1 January 2007.146 One reading of this proviso is that the interpretation regime will not apply to such proceedings, even if they only come to trial several years after the Charter has commenced;147 so, once the uniform evidence legislation has commenced in Victoria, some

proceedings will be governed by that statute as modified by s 32(1), whereas others (especially in the legislation’s early days) will be governed by the unmodified version.

This unsatisfactory situation will, most likely, be ameliorated by one or more of the following

developments:

• courts applying s 32(1) may regard the “purpose” of uniformity in the model evidence legislation

as barring any divergent rights-compatible readings;

• the Supreme Court may exercise its discretion not to issue a declaration of inconsistent

interpretation in relation to the new Victorian evidence legislation, on the basis that such a

declaration would promote undesirable lack of uniformity across Australia;148 or

• the Victorian Government may refuse to enact legislation responding to such a declaration unless all other model evidence law jurisdictions also agree to do so.

These mechanisms (in addition to the features of the Charter noted in this article that dampen its effect on evidence law in any case) will almost certainly keep Victoria’s future evidence law largely in harmony with other jurisdictions. However, they will do so at the cost of failing to promote the Charter’s human rights in the settlement of factual disputes in Victoria.